[00:00:01] Speaker 00:
Good morning, Your Honors, and may it please the court. My name is Samuel Weiss. I represent the appellant, Michael Mitchum.

[00:00:08] Speaker 00:
Mr. Mitchum was a pretrial detainee at the Butte County Jail. He had serious mobility impairments that the county was well aware of and nonetheless failed to accommodate, resulting in a series of painful and humiliating episodes. The district court nonetheless dismissed his pro se complaint on several grounds, all of which required making inferences in favor of defendant instead of Mr. Mitchum. So first, that he lacked a qualifying disability under the extremely lenient standard of the ADA Amendments Act.

[00:00:41] Speaker 00:
Mr. Mitchum's allegations that his knee spontaneously dislocated several times while he was standing in the shower, that he only could ambulate significant distances with a cane or a wheelchair, was indeed provided one, is more than sufficient to alleged that he had a qualifying disability.

[00:01:00] Speaker 02:
I'm going to ask this question to your friend as well, but is it your view that even putting aside what you just mentioned, that his weighing 370 pounds is itself a disability? I think that's entirely possible.

[00:01:21] Speaker 00:
I think that's possible.

[00:01:28] Speaker 00:
What I'd say is that in the purposes section of the ADA Amendments Act, what it was trying to do was get out of the business of closely analyzing whether somebody had a disability and instead shifting the focus to the reasonableness of an accommodation. And so to me, the fact that he weighed so much is relevant at the accommodation stage, that whether – because – The reasonableness of accommodation is context-specific, typically resolved by a fact finder.

[00:02:02] Speaker 00:
And so whether his weight plays a role in the notice that defendants could have had and in the lack of an accommodation, given the seriousness of his falls. So I think his weight is relevant. But once the litigation gets further along in that stage, I think the fact that he had impairments and his ability to stand and to walk is sufficient to get us through disability without having to confront that question right now.

[00:02:35] Speaker 00:
The district court also made inferences in favor of defendant explicitly by saying that it was unclear whether Mr. Mitchell was working as an employee for several of his falls and then assuming that he was and then carving out prison vocational programs from Title II of the ADA?

[00:02:55] Speaker 02:
On that issue, counsel, let's assume in this hypothetical that hypothetically we were to agree with you that the district court imposed too strict a standard in not looking at the allegations in the light most favorable to the non-moving party. I mean, we haven't done that, but assume that as a hypothetical. If that were true, Would there be any reason why we would have to reach the legal issue of whether working in prison and programs they offer, whether that fits the definition of employee or if we were sending the case back because the case shouldn't have been dismissed on the pleadings, just leaving that in the first instance on the merits to the district court?

[00:03:45] Speaker 02:
Would there be any reason why we would need to ourselves reach that legal issue?

[00:03:49] Speaker 00:
There's absolutely no reason that you would have to reach that issue. So I think that it could just be noted that this is just a simple Rule 12 case where Mr. Mitchum didn't get his inferences and then send it back. I will note that we discuss in our opening brief why we don't think Zimmerman v. Oregon DOJ should be extended in this context. But I think more importantly, this panel doesn't have to reach the question of whether

[00:04:17] Speaker 02:
And there are some complexities in this issue.

[00:04:21] Speaker 00:
Well, I think were we writing on a blank slate? I think there are compelling reasons to not extend Zimmerman.

[00:04:29] Speaker 02:
It's not clear we're writing on a blank slate.

[00:04:31] Speaker 00:
But I don't think we're writing on a blank slate because of this court's opinion in Castle v. Eurofresh and then even the Supreme Court statement in Yeske that vocational programs are services.

[00:04:40] Speaker 01:
I just thought the problem here is we don't know what he was doing.

[00:04:44] Speaker 01:
That is, we don't know whether it was part of a vocational program, part of just, you know, this is your shower. You've got to clean it up when you finish. Certainly. I think that goes to. There's the other allegation about in one of the pods, there was somebody was a housekeeper or something, which suggested a different kind of arrangement.

[00:05:07] Speaker 00:
That's absolutely right. That we don't really know.

[00:05:10] Speaker 00:
It's ambiguous, and the district court noted that it was ambiguous and then resolved that ambiguity in a way that was unfavorable to Mr. Mitchum. So I think it would be fine to leave it right there as a reversal.

[00:05:23] Speaker 02:
This has nothing to do with the legal issues before us, and feel free to respectfully decline to answer this question. But if hypothetically we were going to send this case back, would – Would plaintiff have representation in the district court or would he be pro se in the district court? And again, if you don't feel this time that you can answer the question, feel free to tell me.

[00:05:53] Speaker 00:
No, I appreciate that. It's a critical, practical question. Our representation is currently limited to the appeal.

[00:06:01] Speaker 00:
My colleague, Willie Novak, and I who briefed this case are not barred in California. However, we...

[00:06:08] Speaker 00:
Upon obtaining reversal in these sorts of cases, we attempt to recruit local counsel. We are often successful. We are sometimes not successful.

[00:06:16] Speaker 00:
It's also often the case that district courts who, of course, are doing their best and present legal analysis that then gets reversed by a court like this one, they often appoint counsel.

[00:06:27] Speaker 02:
I appreciate your answer. Thank you.

[00:06:31] Speaker 00:
I'd be happy to answer any other questions or else I could reserve my time for rebuttal.

[00:06:34] Speaker 02:
Thank you. That would be fine, counsel. Thank you.

[00:06:43] Speaker 03:
Good morning, Your Honors, and may it please the Court. First, briefly, to address, it's Sheriff Honey is how you pronounce it, so I wanted to make sure I did that since you mentioned that. Here, there are three elements to prove a Title II ADA claim, as you are aware, and plaintiff has not sufficiently pled facts to support any of those three elements. And then in addition to that, there is a fourth element that they must prove for a claim for damages.

[00:07:14] Speaker 03:
Here, they're not seeking injunctive relief, but to obtain damages, they also must prove that they must allege deliberate indifference. Nor has the complaint sufficiently alleged deliberate indifference in this case.

[00:07:26] Speaker 04:
Well, Counsel, he does allege that he needs a wheelchair in order to ambulate, and that on more than one occasion... They either didn't provide him with a wheelchair or took it away from him and then drug him physically through portions of the jail. What more does the plaintiff need to allege to state a cognizable ADA claim?

[00:07:53] Speaker 03:
Well, one, I think we have to reach whether or not he's a qualified person under the ADA as a threshold question for that matter.

[00:08:02] Speaker 04:
But I thought the first time he ever was lodged at the county jail, He was lodged as a disabled inmate. Did I misread the record on that score?

[00:08:14] Speaker 03:
Well, he alleges that he was provided accommodations when he was lodged at the jail, but I don't think the jails placing somebody in a specific housing facility for the jail's reasons necessarily means that he's a qualified person within the meaning of the ADA.

[00:08:30] Speaker 04:
We have to take his allegations as true at this stage of the litigation, do we not?

[00:08:35] Speaker 03:
I agree with that, but just the mere conclusion that the jail placed him in a specific housing assignment does not mean that he is a disabled person within the meaning of the ADA.

[00:08:46] Speaker 02:
But, counsel, looking at the evidence in the light most favorable to the non-moving party, even if we weren't reading these detailed allegations in the complaint, as an example, at ER26, there's a jail record that shows 2019 people shower chair, ADA shower.

[00:09:09] Speaker 02:
I mean, he was classified as an ADA inmate on a previous occasion, wheelchairs, canes.

[00:09:20] Speaker 02:
In the light most favorable to the non-moving party, when you add that to the very specific allegations, as Judge Tomlin mentioned earlier, dragging me through excruciating pain and injury that required surgery, bringing it up time and time and time again. Doesn't mean he's going to win. Doesn't mean that he's going to succeed. But I have a lot of trouble seeing how this doesn't meet the standard of at least getting past the pleading stage.

[00:09:55] Speaker 03:
If you look at what he's actually alleged is his disability, he claims that he has knee problems and that there are two specific instances when he fell in the shower and suffered an acute injury. And that is what he has alleged is his disability. He has alleged that in response to that, an acute injury, he was provided some level of accommodation. Sometimes. Sure. And I think that the fair inference from that is that because of his acute injury that he suffered in the shower, that he was provided some level of accommodation.

[00:10:27] Speaker 03:
But that does not mean that he has a permanent disability for which he needs an accommodation under the ADA.

[00:10:34] Speaker 01:
Does he have to have a permanent disability to qualify under the ADA?

[00:10:38] Speaker 03:
I think if you're looking at when he was provided these accommodations. No, no, no, no.

[00:10:43] Speaker 01:
You're not answering my question. Do you have to have a permanent disability to qualify under the ADA?

[00:10:49] Speaker 03:
You do not have to have a permanent disability to qualify under the ADA.

[00:10:52] Speaker 01:
Didn't this gentleman have serious physical problems?

[00:10:57] Speaker 03:
What he has alleged is that he suffered.

[00:10:59] Speaker 01:
Well, you keep saying he's alleged, and as Judge Tallman said, we have to take his allegations as true because this is on 12B6.

[00:11:09] Speaker 01:
We just take them as true.

[00:11:10] Speaker 03:
I completely agree with that, Your Honor. Yes.

[00:11:14] Speaker 01:
And he was a pro se, so he gets a little even more deference.

[00:11:20] Speaker 04:
Aren't we even more preliminary than a 12B6 claim? I thought this case was screened. Could be. That's right. I forgot it's 12B6. It's screened.

[00:11:29] Speaker 03:
So it was screened initially, and then much of his claim was dismissed after that. But a very narrow claim was allowed to proceed.

[00:11:38] Speaker 04:
But the defendants have yet to appear, right? They haven't answered the complaint.

[00:11:42] Speaker 03:
We filed a 12B6 motion in response to the narrow claims that survived the screening. Oh, after the screening.

[00:11:49] Speaker 01:
Okay. You're right.

[00:11:50] Speaker 03:
All right. Fair enough. Right. Okay.

[00:11:51] Speaker 01:
But he was still pro se all this time, correct?

[00:11:56] Speaker 03:
Yes, Your Honor.

[00:11:56] Speaker 01:
So he gets a little added.

[00:11:59] Speaker 01:
So, I'm sorry. Consideration. He gets a little added consideration.

[00:12:03] Speaker 02:
I understand.

[00:12:04] Speaker 01:
Because he was pro se.

[00:12:05] Speaker 02:
And with regard to your statement about deliberate indifference. So, I mean, I think there are many things in the complaint in the light most favorable to the plaintiff at this stage, which could be interpreted as demonstrating deliberate indifference, but I'll just point to one. So I'm looking at ER 109, and it talks about how in January of 2020, sheriff's deputies provided an accommodation of a wheelchair to go to court.

[00:12:43] Speaker 02:
Then they took it away. And when plaintiff asked why they were taking away the wheelchair, Sergeant Hancock said it came from the top. straight from Hovey. And when plaintiff could no longer walk and began falling, both defendants still proceeded to drag him down the rotunda. So again, we're at the pleading stage. This may all be made up by the plaintiff, but when he alleges that he was told by the ACOs that the reason his accommodation was taken away came straight from the top, and then they dragged him down the corridor.

[00:13:29] Speaker 02:
Why wouldn't that be sufficient at the pleading stage or the 12B stage to raise an inference of deliberate indifference?

[00:13:38] Speaker 03:
There are no facts here pled about what the quote top, and so he's referring to a Lieutenant Hovey, and so he's obviously not the top. And so it I think the allegations are confusing, but what the person at the – Isn't Hovey the jail commander?

[00:13:53] Speaker 03:
I guess I was interpreting the top to be the sheriff as opposed to a gentleman.

[00:13:57] Speaker 04:
The commander of the jail?

[00:14:01] Speaker 03:
Whether or not that's the top or not.

[00:14:02] Speaker 04:
He reports maybe to a captain who then – and maybe then to the undersheriff or something like that.

[00:14:07] Speaker 03:
And that was the point I was making is I don't think that Lieutenant Hovey even has fairly pledged the top, but – He's not a policymaker is what you're saying.

[00:14:15] Speaker 04:
Correct.

[00:14:15] Speaker 03:
Correct.

[00:14:16] Speaker 04:
But he's carrying out the policy that presumably was approved or authorized by the sheriff at some point in the past.

[00:14:23] Speaker 03:
That's what we don't have is we don't have any allegations about what the reason was for why the wheelchair needed to go somewhere else.

[00:14:29] Speaker 04:
Well, I want to go back to the question I asked you earlier because I do think it is significant. He alleges that the first time he was lodged at the county jail, he was lodged as a designated disabled inmate. It's not clear to me.

[00:14:46] Speaker 04:
how these inmates move between state prison and county jails, because it seems to me that the prisons sometimes use the county jails in California as an overflow facility when the prisons get too crowded. So why, at this stage, again, drawing the facts or the inferences in the light most favorable to the plaintiff, why shouldn't we assume that from the first time he was ever lodged at the Butte County Jail, He was a disabled inmate and therefore needed some kind of accommodation.

[00:15:21] Speaker 03:
When I think in 2019, where you're seeing those references, we have these allegations of an acute injury that occurred in the shower and you have these accommodations that are being provided to him, which I do speak to think speak to the fact that there's no deliberate indifference that those accommodations are being provided. Well, unless they're.

[00:15:39] Speaker 04:
he's deprived of those assistive devices as a means of punishment to try and... It sounds to me like he may have some behavioral problems that are animating the fact that he keeps ending up in segregation.

[00:15:54] Speaker 04:
But that's neither here nor there for purposes of the ADA.

[00:15:58] Speaker 03:
I think that is exactly right. And his allegations in his complaint confirm that a lot of the response to him was due to misconduct and due to other not following rules, things like that.

[00:16:12] Speaker 02:
But as I think my colleague indicated, but we're not at that stage. It may well be that if this case were to proceed beyond where it is now, there may be evidence that comes out that this was a very bad inmate with a huge disciplinary record and the reason he was put in the hole or administrative segregation was because of bad conduct and that Sometimes when you're in the hole, you can't have the same accommodations that you could have if you're behaving yourself and you're not in the hole.

[00:16:46] Speaker 02:
But we're nowhere near that.

[00:16:50] Speaker 03:
I just think that it speaks to the deliberate indifference issue. When you have plaintiff admitting in his own pleading that these responses are to his misconduct and to his not following the rules, I think that speaks to whether or not these responses to him are due to deliberate indifference?

[00:17:06] Speaker 04:
But if we take the facts in the light most favorable to the plaintiff, we have to infer that if he alleges that his assistive devices were removed from him, that that is evident, that could be construed by a fact finder as evidence of deliberate indifference. That's where I'm having trouble understanding your argument.

[00:17:29] Speaker 03:
And I just disagree that that's a reasonable inference to draw from those I think he has alleged that the response to him was due to his own misconduct.

[00:17:39] Speaker 04:
How about the incident that he alleges in the jail infirmary where they took his cane away from him and the correctional officers asked the nurse or the PA or whoever was treating him, you know, do you mind if we take the cane? And the PA said, I don't care. And he alleges he needed the cane to get around.

[00:17:55] Speaker 03:
And I think that shows the jail was deferring to the medical judgment of the medical professionals whether or not he needed a cane. in order to assess the rule violation.

[00:18:05] Speaker 04:
Now we're back to credibility determinations and deciding the merits. Again, applying the appropriate standard here, which at this stage, he gets a thumb on the scale when it comes to drawing inferences.

[00:18:20] Speaker 03:
And I agree with you, other than he's alleged in his own complaint that these responses are due to his misconduct, allegations, and rule violations. I've noticed I'm well over my time.

[00:18:29] Speaker 02:
We've taken up a lot of your time with questions. Do you have any concluding remarks?

[00:18:32] Speaker 03:
The one thing I did want to address was your comment about whether his weight could by itself be a disability. That has not been alleged in the complaint. There's been no claim that he is disabled due to his weight, and so I don't think that's at issue here in the briefs.

[00:18:48] Speaker 02:
Although you do agree that he did allege in his complaint he weighs 370 pounds.

[00:18:52] Speaker 03:
Correct, but not that that itself was a qualifying disability. Thank you, Your Honor.

[00:19:05] Speaker 00:
I'd be happy to answer any of this.

[00:19:09] Speaker 02:
We have no questions.

[00:19:10] Speaker 00:
I won't take up more of your time. Thank you so much. Take care. Thank you very much.

[00:19:12] Speaker 02:
We thank counsel for their arguments and the case just argued is submitted.